from the ridiculous dept

We've been talking about the Golan case, and its possible impact on culture, for years. If you're unfamiliar with it, it's the third in a line of cases, starting with the Eldred case, to challenge aspects of copyright law as violating the First Amendment. The key point in the case was questioning whether or not the US could take works out of the public domain and put them under copyright. The US had argued it needed to do this under a trade agreement to make other countries respect our copyrights. Of course, for those who were making use of those public domain works, it sure seemed like a way to unfairly lock up works that belonged to the public. It was difficult to see how retroactively taking works out of the public domain could fit into the traditional contours of copyright law... but today, on the day of the big SOPA/PIPA protests... that's exactly what happened (pdf).

The ruling is ridiculously depressing. The Justices basically just keep repeating the mantra they first set forth in Eldred, that as long as Congress says it's okay -- and that the "fair use" and the "idea/expression" dichotomy remain -- all is just dandy. They also claim that since the very first copyright law took works from the public domain and gave them copyright protection, clearly there's nothing wrong with removing works from the public domain. This decision reinforces why the Eldred decision was a complete disaster, and just keeps getting worse. The Eldred ruling basically ignored the fact that copyright had changed entirely in a way that went against the First Amendment... by retroactively granting copyright extension. Now that ruling is being used to take works out of the public domain as well.

First, as with Eldred (and the second case in the trilogy, the Kahle case), I believe that the Court is greatly mistaken in its analysis of copyright law. First it claims that there's little fight between copyright and the First Amendment because the two things were put in place at about the same time. That's a specious argument for a variety of reasons. First, the original copyright law was significantly limited in a way that it was unlikely to really come into conflict with the First Amendment. It was limited to just a few specific areas, and for a very short period of time. It's only now that (1) copyright law has been totally flipped to make just about everything you create covered by copyright, (2) the law has been massively expanded in time and (3) changes in technology make us all create tons of "copyrighted" material all the time -- things have changed an entirely. It's hard to see how the Court can reasonably argue that the traditional contours of copyright law have not changed... but that's exactly what it does. Stunningly, the majority decision here, written by Justice Ginsburg, seems to suggest that there's no First Amendment issue here, because if people want to make use of the works that were previously, but are no longer, in the public domain, they can just buy those rights:

But Congress has not put petitioners in this bind. The question here, as in Eldred, is whether would-be users must pay for their desired use of the author’s expression, or else limit their exploitation to “fair use” of that work. Prokofiev’s Peter and the Wolf could once be performed free of charge; after §514 the right to perform it must be obtained in the marketplace.

It's a really frustrating decision, because it appears to lack any recognition of just how much copyright law has changed and expanded. It seems to lack -- as it did in Eldred -- any sense of how overreaching copyright law is, in fact, stifling free expression everyday. It's a tone deaf response to what's actually happening.

The dissent, by Justice Breyer (with support from Alito), seems to actually understand this. The rest of the Justices (excluding Kagan, who recused herself due to her role in the case prior to joining the court) just don't seem to want to bother to understand. The dissent, however, kicks off with a quote from Thomas Macaulay's famous speech on the problems of copyright, noting that copyright is, by definition, "a tax on readers for the purpose of giving a bounty to writers." They then note that the decision to remove works from the public domain fails to uphold the basic premise of copyright law:

The statute before us, however, does not encourage anyone to produce a single new work. By definition, it bestows monetary rewards only on owners of old works -- works that have already been created and already are in the American public domain. At the same time, the statute inhibits the dissemination of those works, foreign works published abroad after 1923, of which there are many millions, including films, works of art, innumerable photographs, and, of course, books--books that (in the absence of the statute) would assume their rightful places in computer-accessible databases, spreading knowledge throughout the world.

Breyer -- who has always had a much stronger grasp on copyright than his colleagues -- notes that the whole point of copyright law is to encourage new works, and that the Founders themselves recognized that "monopoly is a two-edged sword, that must be wielded carefully. Breyer quotes the early words of James Madison to Thomas Jefferson, that copyright should be granted, but only "in certain cases.... with caution and guarded with strictness agst abuse" and solely such that it acts as "compensation for a benefit actually gained to the community... which the owner might otherwise withhold from public use."

How taking works out of the public domain accomplishes that goal mystifies Breyer (and me and many others).

Separately, he notes that Congress and the Court have both made it clear in the past that copyright is for the benefit of the public, and not solely to grant rights to authors. The granting of monopolies to authors is the method by which the public might benefit, but not the purpose of copyright law. Retroactively seizing works out of the public domain does not benefit the public. And thus, is unconstitutional. Except... to the six justices who chose not to understand copyright law.

That the Supreme Court released this on the same day of widespread protests against overreaching copyright law is a bit of unfortunate irony. The truth is that Congress is the one who could fix this by actually fixing copyright law and making it clear that the Court's interpretation was wrong. But, instead, because Hollywood pays the bills, they only make copyright law worse. While it's easy to blame this ruling on the Supreme Court, it really implicates Congress. And, thus, it's actually depressingly fitting that this ruling came out today.

from the strong-copyright-isn't-what-got-you-here dept

With the Supreme Court hearing the rather important Golan case this week, concerning the ability of the federal government to take works out of the public domain and put them under copyright, there is actually some mainstream press discussion about the public domain. The NY Times is running a great op-ed piece by Peter Decherney, a film studies professor, talking first about how devastating it's been for filmmakers like him to have works they previous relied on in the public domain suddenly shift to being covered by copyright.

In my own field — film — the effects of the 1994 law have been palpable. Distributors of classic foreign films have seen their catalogs diminished. Students can no longer get copies of many films. Archivists have postponed the preservation of important films. And of course filmmakers have lost access to works of literature that they might have adapted and music that might have enhanced soundtracks.

But the key point is made towards the end of the opinion piece, in which he notes the blatant hypocrisy on the part of the MPAA, who filed an amicus brief in the case arguing that we need to pull works out of the public domain to show the world that the US is "a proponent of strong copyright protection throughout the world."

But, as Decherney points out, all of that is hogwash especially since the very same movie industry that's complaining about this has always relied on the public domain as a source for new works:

But history tells a different story. Filmmakers have consistently used public domain works to anchor artistic and technological innovation. In the 1930s, when Walt Disney decided to make one of the first feature-length animated films, he turned to the Brothers Grimm’s version of the tale of Snow White. When asked why he chose that story, Disney explained that “it was well known.” He understood that “Snow White” was a trusted property, and because he knew that at least the story and characters would be familiar to audiences, he could take an artistic risk with the form.

Disney is only the most famous example of a filmmaker who relied on the public domain to expand the art of film. Starting with Thomas Edison in 1910, filmmakers have adapted Lewis Carroll’s “Alice’s Adventures in Wonderland” in movies that have accompanied the transition to feature films, the establishment of the studios, the switch to sound, the introduction of color, the advent of television and the adoption of widescreen aspect ratios.

And yet, now, works that formerly were in the public domain -- and which some people made a business of selling -- have been removed from the public domain and placed back under copyright law that they don't need. This should be seen as a huge problem with the system and the industry.

from the a-big-problem dept

We've been covering the "Golan" case through the courts for quite some time now. This is an important case concerning the contours of copyright law and the locking up of the public domain. If you don't recall, the case involved whether or not it violates the Constitution to pull content out of the public domain. Certain foreign works that were in the public domain were put back under copyright due to a trade agreement the US signed a while back. Many who relied on those public domain works were left out in the cold. A district court agreed that this appeared to violate the First Amendment. However, the appeals court went the other way, with some troubling arguments about how it was okay to pull works out of the public domain, effectively because US copyright holders insisted that without this, foreign countries would "retaliate" against them, and thus it was okay for Congress to make this call. The Supreme Court has now agreed to hear the case.

The case is important for many different reasons, including helping to establish just what the "traditional contours" of copyright law are -- which is of key importance, because the Supreme Court has declared that copyright can't be expanded past the traditional contours without leading to greater Constitutional scrutiny. However, one thing we've noticed, is that copyright maximalists in our audience have brushed aside the Golan case as a minor concern because it impacted just a few works (foreign works) that most people probably didn't care about anyway.

That may sound abstract, but the impact on Mr. Golan was direct. When a work is in the public domain—that Puccini opera, say—an orchestra can buy the sheet music. Symphonies typically cost about $150. And the orchestra can keep those pages forever, preserving the instructions that librarians laboriously pencil into scores. But works under copyright are typically available only for rent. And the cost is significantly higher: about $600 for one performance. With the flip of a switch, the new law restored copyright to thousands of pieces.

For big-city orchestras like the New York Philharmonic, that change is like a "mosquito bite," Mr. Golan says. But Mr. Golan's university ensemble gets only about $4,000 to rent and buy music each year. That means it can perform some copyrighted works but must rely on the public domain for about 80 percent of its repertoire. And $4,000 is relatively generous. Other colleges might have only $500 to spend on music. When the Conductors Guild surveyed its 1,600 members, 70 percent of respondents said they were now priced out of performing pieces previously in the public domain.

Teaching suffers, too. Every year, for example, University of Denver students compete for the honor of playing a concerto, a piece in which the orchestra accompanies a solo instrument. But when a pianist wanted to audition with a piano concerto by Prokofiev, a Russian composer who died in 1953, Mr. Golan was forced to tell her no.

"It's one that any aspiring pianist needs to learn, and to have the experience of actually playing it with orchestra is phenomenal," Mr. Golan says. But "we just didn't have the money in the orchestra budget to pay the rental price."

It's great to see this case getting more (and more thorough) attention. Hopefully, the Supreme Court recognizes the significance of the case.

from the fingers-crossed-that-they-get-this-right dept

We've been covering a very important copyright case -- Golan vs. Holder -- which involves a key question about copyright law. While the case may seem narrowly focused, it has much larger implications. As we've discussed, it's the third case in a trio of cases that involved Larry Lessig, concerning the ability of the US to retroactively change copyright law. The first two, Eldred and Kahle, both ended up in losses, but they did get the court to establish some boundaries for when and how the US could retroactively change copyright law. As a very quick review, Eldred argued that the ongoing extension of copyright violated the "limited" part of the copyright clause in the Constitution. The Supreme Court eventually said that this was Congress's call, and noted that it wouldn't review copyright extension on First Amendment grounds unless the change in the law went beyond the "traditional contours of copyright protection." Of course, many of us believe that an automatic copyright that lasts multiple lifetimes goes way beyond the traditional contours of copyright protection that kicked off with very limited protections, requiring registration and only lasting for a short period of time. But what do we know?

The second case, challenging the registration/automatic question, pointed out that under the Eldred ruling, the 1976 Copyright Act should be reviewed for First Amendment issues, since it certainly changed the traditional contours by switching copyright from "opt-in" to "opt-out." Actually, it didn't even switch it to opt-out, as there's really no way to officially opt-out of copyright coverage. That seems like a massive change to the traditional contours of copyright law. However, the appeals court got confused and simply assumed that what was being argued was the same issues in Eldred.

The third case is this case, the Golan case -- which noted that due to a treaty agreement, the US took some foreign books that had been in the public domain, and retroactively put them under copyright protection, putting some sellers of those books at risk for infringement. Two years ago, we were a bit surprised to find a court agreed, and said that this part of the Copyright Act was unconstitutional. Basically, the court suggested that Congress could have written the law in such a way that left those works in the public domain. Last summer, the 10th Circuit appeals court reversed the lower court, and basically said it was okay to take these works out of the public domain, and that there was no First Amendment issue in doing so, because copyright law "addresses a substantial or important governmental interest." For a variety of reasons, I found this reasoning to be quite problematic.

Golan appealed, and it was just announced that the Supreme Court will actually take the case and will review the First Amendment issue (along with the Progress Clause issue). While I wouldn't be surprised if the Court made a ruling that flies in the face of reason, as it did with Eldred, perhaps we can be hopeful that some on the court will finally recognize how the massive expansion of copyright over the last century really does raise serious First Amendment issues. This is an important case to follow, even if it seems likely that the Supreme Court will make another bad ruling. And, even though it may be a narrow issue, getting the Supreme Court to actually look at some of the issues when the First Amendment comes into conflict with copyright is still important.

from the would-be-nice... dept

We've been covering the Golan case for a while now. It's an important case in determining the contours of copyright and the public domain. Many details of the case involve a lot of legal specifics, but the general point was to question whether or not taking works out of the public domain, and putting them under copyright violated the First Amendment. Now, there's a lot more to it than that, and it would take way too much time to get into all the details. But, basically, due to a trade agreement, certain works that had been considered in the public domain in the US, were put back under copyright. Whether or not that, alone, is that big of a deal wasn't the key point. Realistically, the point of the case was to get a court to finally admit that there were ways in which Congress could change copyright law that violated the First Amendment.

This had been the key point raised in the famed Eldred case, in which the Supreme Court concluded that copyright extension to keep works out of the public domain did not violate the First Amendment basically because Congress said so (again, for the angry lawyers, I am simplifying to keep this short). However, the court did leave a tiny opening, by saying that if Congress "altered the traditional contours of copyright protection," then it could require First Amendment scrutiny. Of course, to some of us, the fact that copyright now automatically covers all sorts of new works immediately upon creation -- and that it lasts the author's life plus another 70 years, as compared to original copyright laws, which only covered a small sub-section of content, required registration for coverage and only lasted 14 years (with the ability to renew for another 14) -- certainly seems like Congress altering the traditional contours of copyright protection, but what do we know?

So, here's where the Golan case got interesting. It's bounced back and forth a few times between the district court and the appeals court. In 2007, the appeals court went through a long (and, admittedly, tortured) explanation for how taking works out of the public domain certainly could "alter the traditional contours of copyright protection," sending the case back to the lower court to consider whether or not this potential contour violation could be a First amendment problem. It took some time, but early last year, the court said that, yes, this move did appear to violate the First Amendment. But... earlier this year, the appeals court reversed the lower court's ruling (despite it sending it back to the district court in the first place), saying that the government had plenty of good reasons to pull works from the pubic domain, and thus, there was no First Amendment violation. In some ways, it appeared to suggest that so long as there was a "substantial or important government interest," the First Amendment issue was a non-starter (which seems to go against the very concept of the First Amendment).

So.... why is this all important? Well, one of the problems with the Eldred ruling is that no one knows what within Congressional changes to copyright law actually does "alter the contours," and too many lawyers seem to believe that the Eldred ruling means that whatever Congress wants to do to copyright laws is okay. Having a precedent that shows that, no, some of these changes really do alter the contours and that, yes, this is a First Amendment violation, can hopefully create at least some sort of standard by which the courts actually look at copyright law changes to see if they violate the First Amendment, rather than just saying "if Congress did it, it's okay."

In our view, these questions could not be more important. The point of copyright protection is to encourage people to create things that will ultimately belong to the public. While the scope and duration of copyright protection has changed over time, one aspect of the copyright system has remained consistent: once a work is placed in the Public Domain, it belongs to the public, and remains the property of the public -- free for anyone to use for any purpose. That principle was respected for more than 200 years, because it represents a critical limit on the intellectual property "monopoly" the Framers authorized. By restoring copyrights in tens of thousands of works that had been in the Public Domain for decades, the URAA represents a radical departure from these basic principles, and it affects a broad array of critically important public speech rights. The Tenth Circuit's decisions in this case suppress those rights, and threaten the integrity of the Public Domain itself.

from the awful-ruling dept

Warning: this one is depressing if you believe in the public domain. You may recall that last year, a district court made a very important ruling on what appeared to be a minor part of copyright law. The "Golan" case asked a simple question: once something is officially in the public domain, can Congress pull it out and put it back under copyright? The situation came about because of (yet another) trade agreement that pulled certain foreign works out of the public domain. A district court had initially said that this move did not violate the law, but the appeals court sent it back, saying that the lower court had not analyzed the First Amendment issue, and whether this was a case where the inherent conflict between the First Amendment and copyright law went too far to the side of copyright by violating the "traditional contours of copyright law." Getting a second crack at this, the district court got it right -- and was the first court to point out that massively expanded copyright law can, in fact, violate the First Amendment.

But, of course, it couldn't last.

On Monday, the appeals court reversed the lower court's ruling and said there's no problem with the First Amendment because copyright law "addresses a substantial or important governmental interest." This is, plainly speaking, ridiculous. The argument effectively says that the government can violate the basic principles of the First Amendment any time it wants, so long as it shows a "substantial or important government interest." But that makes no sense. The whole point of the First Amendment was to protect citizens' interestsagainst situations where the government's interests went against citizens' interests. It should never make sense to judge a First Amendment claim on whether the government has "substantial or important" interests.

On top of that, the court basically said "Congress knows best" on this issue. Again, this seems to go against the entire point of the First Amendment and the important judicial protections of the First Amendment. The whole point of court oversight of Congress is because Congress doesn't always know best. But here, the court has no problem deferring entirely to Congress:

This
deferential standard is warranted for two important reasons. First, Congress is
"far better equipped" as an institution "to amass and evaluate the vast amounts of
data bearing upon the legislative questions." ... Second, we owe Congress "an additional measure of deference out of
respect for its authority to exercise the legislative power."

Except, as has been shown time and time again on copyright issues, Congress has done a terrible job amassing any data to support its continued and unstoppable expansion of copyright law. Just within the past few months we've seen the GAO -- which is supposed to make sure that Congress is properly applying data -- admit that Congress is flat out ignoring the actual evidence and agreeing with bogus studies from a few industries that is not backed up with any actual evidence.

Most worrying of all? The court says that it should keep out of this discussion because it involves international relations and international treaties. See why you should be scared to death of ACTA? The courts are effectively admitting that once you get these "international obligations" in place, the courts should mostly stay out of the discussion, even if it violates the basic tenets of US law. That's downright scary. The court gives a lip service defense to this, saying that it can still review international agreements to make sure they abide by the First Amendment... but... for the most part, it'll just defer to Congress.

Next up? The court actually relies on testimony about "losses" from an RIAA official as well as someone from the IIPA (a lobbying group made up of the RIAA, MPAA and other similar organizations):

In particular, American works were unprotected in several foreign countries, to
the detriment of the United States' interests.... statement of Jason S. Berman,
Chairman and CEO of the Recording Industry Association of America... :"[T]here
are vastly more US works currently unprotected in foreign markets than foreign
ones here, and the economic consequences of [granting retroactive copyright
protection] are dramatically in favor of US industries.").... By some estimates,
billions of dollars were being lost each year because foreign countries were not
providing copyright protections to American works that were in the public domain
abroad.... (statement of Eric Smith, Executive Director and General
Counsel of the International Intellectual Property Alliance) ("Literally billions of
dollars have been and will be lost every year by U.S. authors, producers and
publishers because of the failure of many of our trading partners to protect U.S.
works which were created prior to the date the U.S. established copyright
relations with that country, or, for other reasons, these works have fallen
prematurely out of copyright in that country.").

These are the same studies that the GAO -- whose actual job it is to analyze these reports -- dismissed as junk science. This is exactly where the courts should step in and note that Congress is not doing its job and is doing serious harm at the behest of a few small industry interests. What a travesty that this court couldn't see that.

And, of course, the court continues to rely on clearly biased individuals who had a clear agenda, rather than a factual basis for their positions. It even quotes Jack Valenti's ridiculous claim that if the US removed foreign works from the public domain, that suddenly China and Russia would start respecting US copyright.

Also incredibly frustrating, misleading and inaccurate is a small footnote, which asserts the commonly claimed excuses by the courts for why copyright law does not violate the First Amendment: that the "idea/expression dichotomy" and "fair use" make it so there is no conflict. But what's frustrating in this footnote is that this particular court seems to suggest that so long as copyright doesn't mess with those two things then there's no First Amendment issue with copyright.

We note that copyright includes several "built-in" First Amendment
protections.... The idea/expression dichotomy ensures
that only particular expressions, and not ideas themselves, are subject to
copyright protection.... Additionally, the fair use defense allows individuals to
use expressions contained in a copyrighted work under certain circumstances,
including "criticism, comment, news reporting, teaching . . . scholarship, or
research . . . and even for parody." ... Section
514 does not disturb these traditional, built-in protections, and thus, such
protected speech remains unburdened.

But that's wrong. Dangerously, ridiculously and constitutionally questionably wrong. Just because there are those two "valves" to hopefully keep copyright law from violating the First Amendment (and there are some very, very serious questions about how well either of them actually work), it does not mean that those are the only places where copyright law must be judged under the First Amendment.

In this particular case, a very serious issue was raised: works that clearly were in the public domain, and which some publishers were relying on as public domain documents suddenly are no longer in the public domain. If you have any respect at all for the core notion of copyright -- which was originally supposed to be about getting more works into the public domain -- the idea that you can then take works back out of the public domain is downright ludicrous. It goes beyond being a violation of the basic contours of copyright law. It goes against the very Constitutional principles behind copyright law -- and does so in a way that is a clear violation of the First Amendment.

Which part of "Congress shall make no law... abridging the freedom of speech" does this court not understand?

All in all this is an incredibly frustrating ruling. It feels like the court didn't actually want to address the admittedly difficult question of how the First Amendment and copyright law come into conflict, so it just punted and said "well Congress knows best, so it's okay." The case will almost certainly be appealed, potentially for an en banc (full appeals court review) or directly to the Supreme Court. So this most certainly is not over yet. But after a reasonable ruling last year to this year's reversal, it's definitely a step backwards for anyone who believes in the importance and sanctity of the public domain.

from the wow dept

A year and a half ago, we were quite surprised when the 10th Circuit Court of Appeals actually sided with Larry Lessig, concerning how a part of copyright law that pulled foreign works out of the public domain was potentially unconstitutional. This was in the "Golan case," the third of three big copyright cases Lessig had championed. The appeals court had sent the case back to the lower court, and that lower court has now decided that, indeed, a trade agreement (URAA) that pulled foreign content out of the public domain is unconstitutional as it violates the First Amendment. While it may seem narrowly focused, this is the first case that has successfully challenged a part of copyright law as being unconstitutional. The ruling will almost certainly be appealed, so it's not over yet -- but it's still a rare and important win for those who are fighting to keep copyright law from destroying the public domain.

The specifics may seem a bit down in the legal weeds, but they're quite important. In the famous Eldred case, which challenged the constitutionality of continual copyright extension, the Supreme Court held that this was within Congress' purview, so long as it didn't muck with "the traditional contours of copyright law." The two later cases that Lessig was involved in both focused on this claim, trying to note that changes in the law did not, in fact, stick with the traditional contours of copyright law, and in removing content from the public domain actually violated First Amendment rights. In this case, the plaintiffs had relied on previously public domain works, that were suddenly pulled back under copyright by this treaty. They argued that taking content back out of the public domain went against the traditional contours of copyright law. While the lower court initially disagreed, the appeals court reversed the decision, and sent it back to the lower court -- noting that since the traditional contours of copyright law had been changed, the new law had to be reviewed as to whether or not it violated the First Amendment.

This latest ruling said that, yes, it appears that it did in fact violate the First Amendment -- pointing out that while Congress did need to comply with international treaties, it did not have to do so in the way it did here (i.e., it could have created an exception for those who were already making use of these works in the public domain):

Congress has a legitimate interest in complying with the terms of the Berne Convention.
The Berne Convention, however, affords each member nation discretion to restore the copyrights
of foreign authors in a manner consistent with that member nation's own body of copyright law.
In the United States, that body of law includes the bedrock principle that works in the public
domain remain in the public domain. Removing works from the public domain violated Plaintiffs' vested First Amendment interests. In light of the discretion afforded it by the Berne
Convention, Congress could have complied with the Convention without interfering with
Plaintiffs' protected speech. Accordingly--to the extent Section 514 suppresses the right of
reliance parties to use works they exploited while the works were in the public domain--Section
514 is substantially broader than necessary to achieve the Government's interest.

So, yes, this is a narrowly focused issue (and likely to be appealed right back up), but just the fact that a court has finally realized that copyright law can violate the First Amendment is a big win. Where this could get more interesting is if it eventually gets appealed up to the Supreme Court, and the court recognizes (as it hopefully will) that there's a discrepancy between this ruling and the ruling in another of Lessig's cases, Kahle v. Gonzales (which happened in the 9th circuit), and decides to look into whether or not certain changes in copyright law really did change the traditional contours of copyright law.

from the be-patient,-Lessig dept

This post may be a little "inside baseball-ish" when it comes to copyright issues, but it's worth noting what's happening in some important lawsuits. While the Supreme Court has been gleefully taking on more and more cases concerning patent law, it seems that it's not yet ready to revisit some important discussions around copyright law, since the Eldred case back in 2003. Late last year, we updated you on a few cases that have used the specific wording of the Eldred decision to argue that recent copyright law changes were violations of the First Amendment. In Eldred, the Supreme Court had ruled that it was only a First Amendment issue if changes in the law changed the "traditional contours of copyright protection." It's that clause that some other cases have been challenging lately. As we noted in that last post, there appeared to be a split among the different circuit courts concerning whether recent copyright changes did, in fact, change the traditional contours of copyright protection. That, it seemed, was actually a good thing, because different circuits with different readings is the sort of thing that attracts the Supreme Court's interest.

Unfortunately, it appears that the Supreme Court just isn't all that interested yet. Larry Lessig has the update, where he notes that the Supreme Court has refused to take the case so far, though part of its reasoning was that the government's filing insisted that the one ruling that said the traditional contours had been changed was an obvious mistake that would be overturned when the 10th Circuit agreed to rehear the case. Except... the same day that the Supreme Court turned down the case, the lower court turned down the request to rehear the case. As Lessig notes, this is far from over, but it appears that the Supreme Court won't be settling this matter any time soon, which is a bit unfortunate.

from the a-win-for-lessig dept

This one comes as a bit of a surprise. The third in Larry Lessig's triumvirate of copyright cases may present his first serious court victory on these issues (and it potentially could come back to help the second case as well). A little history first. A few years back, Larry Lessig took a copyright case to the Supreme Court. The so-called Eldred case challenged recent changes to copyright law by Congress, stating that the repeated extensions to the length of copyright violated the Constitution, which guaranteed that copyright should only last a "limited" time. The Supreme Court disagreed with Lessig and Eldred, saying that Congress was within its Constitutional right in extending copyright. However, the case opened up some potential arguments to be discussed in later cases -- and Lessig has taken full advantage of that. The key point that the court made was that Congress' actions can be scrutinized under the First Amendment when it changes the "traditional contours of copyright protection." The court didn't think that simply extending copyright changed the contours of copyright protection -- but it did set some of the parameters for getting the courts to review changes to copyright law.

In fact, Lessig used that ruling in the next case, the Kahle case, arguing that the changes Congress made back in 1976, switching copyright from an "opt-in" system to an "opt-out" system clearly changed the traditional contours -- which seems like a reasonable argument. However, the 9th Circuit Court of Appeals unfortunately seemed to think that Lessig was simply re-arguing the Eldred case and couldn't tell the difference even though the Kahle case was about changes to the nature of copyright law, and the Eldred case was simply about extending copyrights. The Kahle case is being appealed to the Supreme Court. Of course, the Supreme Court tends to like to take cases where two lower courts have seemingly disagreed with each other -- and a new ruling in a different case involving Lessig may have just created that type of disagreement -- which could hopefully make the Supreme Court pay attention.

The third case, the Golan case, questions a separate change to copyright law, where a US trade agreement forced foreign works that had been in the public domain back under copyright. Once again, the argument was that, based on the Eldred ruling, this change altered the traditional contours of copyright protection -- and therefore should be reviewed under the First Amendment. To the surprise of many folks (me included), the 10th Circuit Court of Appeals has agreed and sent the case back to the district court to determine if this change really did violate the First Amendment (though, it should be noted that the court disagreed with Golan/Lessig on a variety of other points). Lessig is quite hopeful that the supposed disagreement between the 9th and 10th Circuit will cause the Supreme Court to take notice and review this area of copyright law. Lessig, obviously, is quite excited about this -- though, if you want a more tempered opinion, it's worth reading copyright expert William Patry's take on the decision, which he seems to find somewhat baffling for a variety of reasons, both in the court's reasoning and the reasoning behind Lessig's position. Either way, this is a big victory for Lessig, and while it may seem a fairly minor nitpick into the nature of copyright law, it could represent a tiny, but important, door-opening crack in preventing Congress from further eroding the rights of individuals when it comes to how they can use content.